Citation Nr: 0004606 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-17 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under Chapter 30, title 38, United States Code, beyond May 11, 1998. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from October 1976 to October 11, 1979, and then from June 3, 1981, to December 15, 1989. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the Regional Office (RO). 2. The RO reduced the veteran's delimiting date by the number of days he was not on active duty between January 1, 1977, and July 15, 1981. 3. The veteran's initial delimiting date for Chapter 30 educational assistance benefits was January 1, 2000. 4. The veteran's adjusted delimiting date was May 11, 1998. CONCLUSION OF LAW The veteran's delimiting date for Chapter 30, title 38, United States Code, educational assistance benefits was properly adjusted. 38 U.S.C.A. § 3031 (West 1991 & Supp. 1999); 38 C.F.R. § 21.7050(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran had two periods of active duty. The first period established eligibility for educational assistance benefits under Chapter 34, title 38, United States Code. The Chapter 34 program terminated December 31, 1989, and no benefits can be paid under that program for training after that date. 38 U.S.C.A. § 3462(e). The veteran also had a second period of active duty, however, and pursuant to 38 U.S.C.A. § 3011(a)(1)(B)(i) has established eligibility for educational assistance benefits under Chapter 30, title 38, United States Code. The Chapter 30 program is also known as the Montgomery GI Bill. The veteran was separated from his second period of active duty on December 15, 1989. The statutes provide a ten-year period of eligibility during which an individual may use his entitlement to educational assistance benefits; that period begins on the date of the veteran's last discharge from active duty. 38 U.S.C.A. § 3031(a). For individuals whose eligibility is based on 38 U.S.C.A. § 3011(a)(1)(B)(i), however, the ten-year period of eligibility is reduced by the amount of time equal to the time that the veteran was not serving on active duty during the period beginning January 1, 1977, and ending June 30, 1985. 38 U.S.C.A. § 3031(e); 38 C.F.R. § 21.7050(b). The evidence of record reflects that the veteran applied for educational assistance benefits in November 1997. The claims folder contains an undated Worksheet for Adjusted Delimiting Date that reflects that the veteran was not on active duty for a total of one year, seven months and 22 days during the period in question. In a letter dated in December 1997, the RO referred to a prior letter that had incorrectly advised the veteran that his delimiting date for use of Chapter 30 benefits was January 1, 2000. A copy of an earlier letter and other letters from VA referencing a January 2000 delimiting date were submitted by the veteran at his October 1999 hearing. Nevertheless, the December 1, 1997 letter in the claims folder informs the veteran that the law required that his delimiting date had to be adjusted from January 1, 2000, and that his new delimiting date for using his Chapter 30 entitlement was May 11, 1998. In November 1997 the veteran applied for educational assistance benefits for a program in television/radio broadcasting. That claim was denied in a letter from the RO dated in December 1, 1997, as his delimiting date for use of his remaining entitlement had passed in May 1998. That denial letter also indicated the veteran had incorrectly been sent a letter that showed he could receive Chapter 30 benefits until 2000; the letter stated that such benefits could not be paid after May 11, 1998. The veteran expressed his disagreement, indicating he should have until January 1, 2000, for the use of benefits. A Statement of the Case sent to him in August 1998 explained that his period of eligibility was required to be reduced by law, and that as a result his delimiting date was May 11, 1998, not 2000. The veteran perfected this appeal by filing a substantive appeal in which he argued that he was told by VA on several occasions that he had 10 years from service discharge in which to use his educational benefits. He requested a travel board hearing, which was held before the undersigned in October 1999. At the hearing, he testified that he believed the delimiting date for his period of eligibility should be 2000, not 1998. Based on the evidence of record, the Board finds that the RO properly adjusted the veteran's delimiting date for Chapter 30 educational assistance benefits. Pursuant to 38 U.S.C.A. § 3031(a) (e); 38 C.F.R. § 21.7050(b), VA must reduce the ten year period of eligibility of any veteran whose eligibility for Chapter 30 benefits is established under 38 U.S.C.A. § 3011(a)(1)(B)(i) by an amount of time equal to the amount of time he was not on active duty during the period extending from January 1, 1977, to June 30, 1985. In this case, the veteran was not on active duty for a total of one year, seven months and 22 days during that period. While the veteran's initial delimiting date for use of his educational assistance benefits entitlement was January 1, 2000, a date ten years following his discharge from active duty, the RO, as required by law, computed his reduced date and determined that the part of the period between the veteran's first and second periods of active duty resulted in an adjusted delimiting date of May 11, 1998. The Board acknowledges the veteran's argument that his delimiting date should be 2000, particularly in light of the fact that he was informed by VA that 2000 was his delimiting date. The legal criteria governing the payment of education benefits are clear and specific, and the Board is bound by them. Notwithstanding VA's obligation to correctly inform the veteran about basic eligibility or ineligibility for Chapter 30 educational assistance benefits, the remedy for breach of such obligation could not involve payment of benefits where statutory requirements for such benefits are not met. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994). It is regrettable if the veteran received inaccurate advice regarding the delimiting date for eligibility for educational assistance benefits. Inaccurate advice would not, however, create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994) ("[e]rroneous advice given by a government employee cannot be used to estop the government from denying benefits.") As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The benefit sought on appeal is denied. M. Sabulsky Member, Board of Veterans' Appeals